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Bass v. State (11/18/2016) ap-2527

Bass v. State (11/18/2016) ap-2527


         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  

                                  303 K Street, Anchorage, Alaska  99501

                                              Fax:  (907) 264-0878

                                      E-mail:  corrections @



                                                                    Court of Appeals No. A-11536  

                                    Appellant,                    Trial Court No. 3PA-11-2791 CR  

                           v.                                                  O P I N I O N  


                                                                   No. 2527 - November 18, 2016  


                  Appeal from the Superior Court, Third Judicial District, Palmer,  


                  Gregory Heath, Judge.  


                  Appearances: Andrew Steiner, Attorney at Law, Bend, Oregon,  


                  for the Appellant.  Nancy R. Simel, Assistant Attorney General,  


                  Office of Criminal Appeals, Anchorage, and Craig W. Richards,  


                  Attorney General, Juneau, for the Appellee.  

                  Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  


                  Superior Court Judge. *  


                  Judge ALLARD.  

     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  

Constitution and Administrative Rule 24(d).  

----------------------- Page 2-----------------------

                                Bobby Jack Bass was convicted of failure to render assistance to an injured                                                                                       

person after a vehicle accident, a felony under AS 28.35.060(c). On appeal, Bass argues                                                                                                            

that the superior court improperly instructed the jury on the elements of this crime.                                                                                                     

                                We agree with Bass, and we reverse his conviction.                                                 

                Relevant legal background            

                                A pair of statutes, AS 28.35.050 and AS 28.35.060, define the duties of a                                                                                                       


driver who is involved in an accident where one or more people are injured or killed.                                                                                                                                


                                AlaskaStatute28.35.050(a) declares thatthedriver "shall immediatelystop  


the vehicle at the scene of the accident or as close to it as possible," and that the driver  


shall  then  "return  to,  and  remain  at,  the  scene  until  the  [driver]  has  fulfilled  the  


requirements of AS 28.35.060."  


                                 Subsection (a) of AS 28.35.060 defines two distinct groups of duties that  


the driver must fulfill.  First, the driver must give his or her "name, address, and vehicle  


license number" to the injured person or to some other attending person.  Second, the  


driver must "render ... reasonable assistance" to the injured person, "including making  


of arrangements for attendance upon the person by a physician and [for transporting the  


person], in a manner that will not cause further injury, to a hospital for medical treatment  


if it is apparent that treatment is desirable."  


                                Although the driver must comply with both sets of duties, AS 28.35.060(b)  


and (c) create different penalties for a defendant's failure to perform each duty.  Under  


AS 28.35.060(b), a driver who fails to provide identifying information is guilty of a  


misdemeanor and faces up to 1 year's imprisonment.  Under AS 28.35.060(c), a driver  

         1      See  also  Drahosh  v.  State,    442    P.2d  44,  47-48  (Alaska  1968)  (referring  to  

AS  28.35.050  and  AS  28.35.060  as  constituting  an   "interlocking  statutory   scheme  

proscribing conduct commonly known as 'hit and run' driving").  

                                                                                                   - 2 -                                                                                              2527

----------------------- Page 3-----------------------

who fails to render reasonable assistance to an injured person is guilty of a felony and                                                                 

faces up to 10 years' imprisonment.           

              Why we reverse Bass's conviction                

                           In   the   current   case,   Bass   was   indicted   under   the   felony   provision   of  

AS 28.35.060.                  That is, he was charged with failing to remain at the scene until he had                                                                 


rendered reasonable assistance to the person who was injured in the collision.                                                                                  


                           But at trial, the jury was instructed that Bass would be guilty of the charged  


felony  if  he  failed  to  comply  with  either  of  the  two  groups  of  duties  imposed  by  


AS 28.35.060(a).   That is, the jury was told that Bass should be found guilty of the  


felony if the State proved either that Bass failed to provide identifying information or  


that Bass failed to render reasonable assistance.  


                           Bass objected to  this  jury  instruction,  pointing  out (correctly)  that the  


instruction permitted the jury to convict Bass of a felony for conduct that was only a  


misdemeanor under Alaska law.   The court overruled Bass's objection and gave the  


erroneous  jury  instruction.                               The  prosecutor  subsequently  exacerbated  this  error  by  

expressly arguing to the jurors during his summation that Bass should be convicted of  


the charged  felony because he failed  to  provide identifying information.                                                                                 The jury  


convicted Bass, and Bass now appeals.  


                           On appeal, the State argues that the erroneous instruction was harmless  


because Bass never argued that he rendered reasonable assistance to the driver in the  


other vehicle; instead, he argued only that he was not the driver of his vehicle.  (Bass  


claimed that his wife was driving.)  

       2     AS 28.35.060(a) and (c).  

                                                                                   -  3 -                                                                           2527

----------------------- Page 4-----------------------

                    But as Bass points out, there was evidence presented at trial that Bass got  


out of his vehicle and approached the other driver to check on his welfare, and that Bass  


did not leave the scene until the situation appeared to be under control and other people  


had directly assumed responsibility for taking care of the other driver.  


                    Bass'sattorney did notarguethis evidenceduringhis closingargument, but  


the attorney's omission is easily explained by the fact that the trial judge had already  


rejected thedefenseattorney's objection to theerroneous jury instruction ontheelements  


of the crime.  That is, when the defense attorney delivered his summation, he already  


knew that the jury was going to be instructed that Bass could be convicted either if he  


failed to provide his identifying information or if he failed to render assistance to the  


other driver.  There was no evidence that Bass provided his identifying information to  


anyone - so, under the erroneous jury instruction, it made no difference whether Bass  


checked on the other driver's well-being before he left the scene.  


                    Given  these  circumstances,  we  cannot  say  that  the  erroneous  jury  


instruction  was  harmless.                We  accordingly  reverse  Bass's  conviction  for  violating  


AS 28.35.060(c), and we remand this case to the superior court for further proceedings  


consistent with this decision.  



                    We REVERSE the judgment of the superior court.  


                                                              - 4 -                                                         2527

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